Shri M. G. Devasahayam is a former IAS and Managing Trustee, Citizens Alliance for Sustainable Living, Chennai
He is the Convener of the PMANE Expert Group on Koodankulam.
Shri Devasahayam can be reached firstname.lastname@example.org
Supreme Court Judgment–The Essence
On 6th May 2013, Supreme Court delivered the much awaited judgment on the Koodunkulam Nuclear Power Plant (KKNPP) arising out of SLP (C) 27335/2012 that had been reserved since first week of December 2012. The penultimate para (229) of the judgment reads thus: “Before proceeding to issue certain directions, it is required to be stated that the appellant, by this Public Interest Litigation, has, in a way, invoked and aroused the conscience/concern of the court to such an issue. True it is, the prayer is for the total closure of the plant and the Court has not acceded to the said prayer but his noble effort is appreciated to put forth the grievance of the local people and the necessity of adequate safety measures as is perceived. When such cause comes up before this Court, it is the bounden duty to remind the authorities “Be alert, remain always alert and duty calls you to nurture constant and sustained vigilance and nation warns you not to be complacent and get into a mild slumber”. The Atomic Energy Regulatory Board (AERB) as the regulatory authority and the MoEF are obliged to perform their duty that safety measures are adequately taken before the plant commences its operation. That is the trust of the people in the authorities which they can ill afford to betray, and it shall not be an exaggeration to state that safety in a case of this nature in any one’s hand has to be placed on the pedestal of “Constitutional Trust”.
After placing public safety on the pedestal of “Constitutional Trust”, Supreme Court has issued 15 directions for compliance by nuclear establishment and other regulators for strict compliance before commissioning of the plant. From the language, tone and tenor these conditions appear to be non-negotiable.
Response from Nuclear Establishment
Nuclear Power Corporation of India Ltd (NPCIL) response to the judgment was typical of the nuclear establishment’s vulgar hurry to impose the unsafe KKNPP on the struggling people: “With the Supreme Court giving the green signal, the first reactor of the Kudankulam Nuclear Power Project is likely to go critical anytime between May 13 and 20. Top sources in the NPCIL told ‘The Hindu’ that a team of Automic Energy Regulatory Board experts are going through the results of the test conducted a few days ago and holding discussions on the results with the NPCIL technocrats. The AERB’s governing body, expected to meet before this weekend is likely to take a final decision on giving the nod for criticality immediately”
As for RK Sinha, Chairman of the Atomic Energy Commission (AEC) it was a great relief and he said so: ‘I humbly welcome the judgment of the court, it should lay to rest all perceived doubts about the Kudankulam atomic reactor. The reactor is at an advanced stage of commissioning and criticality or the start of the nuclear chain reaction in the plant should happen soon.’
It looks as if nuclear establishment had not read the judgment carefully. If they had done so their response would have been different. And they had to be reminded of it the hard way-through a legal Notice which reads as under:
“As you are aware, the Supreme Court has given several directions to be complied with before the commissioning of KKNPP including the following two directions:
1. The plant should not be made operational unless AERB, NPCIL, DAE accord final clearance for commissioning of the plant ensuring the quality of various components and systems because their reliability is of vital importance…….
15. The AERB, NPCIL, Ministry of Environment & Forests (MoEF) and Tamil Nadu Pollution Control Board (TNPCB) would oversee each and every aspect of the matter, including the safety of the plant, impact on environment, quality of various components and systems in the plant before commissioning of the plant. A report to that effect be filed before this Court before commissioning of the plant.
The above directions of the Supreme Court are categorical. These directions need no interpretation whatsoever. As per these directions, Kudankulam Nuclear Power Project cannot be commissioned as it stands now. When clearance was granted by you (AERB) for initial fuel loading (IFL) and first approach to criticality (FAC) of Unit.I of Kudankulam Nuclear Power Project on August 10, 2012 the same was challenged before the Madras High Court by my client. The said clearance was ultimately tested by the Supreme Court in Civil Appeal No. 4440 of 2013 and batch matters. Having considered all aspects of the matter, the Supreme Court has now given a direction to you (AERB & NPCIL) and the Department of Atomic Energy not to make the KKNPP operational until a fresh review of the quality of various components and systems of the KKNPP is undertaken. The Supreme Court has further given a direction to you (AERB & NPCIL) and Ministry of Environment & Forest of the Government of India and the Tamil Nadu Pollution Control Board to oversee each and every aspect of the matter, including the safety of the plant, impact on environment, quality of various components and systems in the plant and after fulfilling this task file a report in the Supreme Court before commissioning of the plant. These directions have not yet been complied with by you (AERB & NPCIL) or by the Government of India or by the Tamil Nadu Pollution Control Board.
It appears that after the judgment of the Supreme Court you have not even commenced a fresh review of the ‘quality of various components and systems in the plants’. Without even attempting to comply with the directions of the Supreme Court, NPCIL is making a statement to the press that the KKNPP is likely to go critical any time between May 13 and 20.
Kindly take notice that any such assertion on the part of NPCIL or AERB as reported in The Hindu dated 7 May 2013 would amount to contempt of the Supreme Court, since no report as directed by the Supreme Court in direction No.15 has so far been submitted to the Supreme Court.”
While this could bring some succour to the struggling farmer-fisher folk, Supreme Court judgment nevertheless suffer from several flaws:
- While the Special Leave Petition starts with characterising nuclear power as “the most dangerous means of producing energy with a serious potential for catastrophic accidents causing severe damage to life and property, with cost of reparation running into lakhs of crores of rupees”, the court nonchalantly and without appropriate due diligence declares that “nuclear energy…is a clean, safe, reliable and competitive energy source”. This assertion is debatable, disputable and defeats the very purpose for which the petitioners appealed to the highest court of law.
- On the issue DGR (Deep Geologic Repository) for radioactive nuclear waste, which is a critical issue concerning public safety, the court has been very casual: “NPCIL does not seem to have a long term plan, other than, stating and hoping that in the near future, it would establish a DGR (Deep Geologic Repository)”. Its directive that “DGR has to be set up at the earliest” does not specify a date nor make it a necessary condition before NPCIL embarks on new nuclear reactor construction. This is clear pandering of the nuclear establishment.
- Safety concerns that remain paramount in the minds of the citizens living in the vicinity of Koodankulam have not been adequately acknowledged by the Court, which did not even see fit to mention the problems with valves that the AERB disclosed, or the news reports of corruption in supplier companies in Russia. The Court’s call to “educate the people” smacks of condescension, which is anachronistic for a democracy and inexplicable when seen in the context of this well-informed and widely-participated movement against the Koodankulam reactors.
- SC’s uncritical reliance on the opinions of the nuclear establishment and its complete disregard of the absence of public trust in the regulatory agency is a serious problem with the judgment. It quotes extensively from AERB documents, especially safety codes, yet overlooks the fact that AERB and NPCIL do not often follow their own safety rules. The most pertinent example is that of Koodankulam itself, when AERB allowed the loading of fuel into the reactors even though NPCIL had not complied with its safety recommendations following the Fukushima nuclear accidents.
- The Court did not even acknowledge, let alone examine, the questions surrounding the independence and effectiveness of the AERB, and instead claimed that the AERB has been “regulating the nuclear and radiation facilities in the country very effectively”. Last year, the Comptroller and Auditor General (CAG) pointed out that AERB “continued to be…an authority subordinate to the central government”, putting a big question mark over its independence as a regulator. Its actions in the case of Koodankulam, unfortunately, do not enhance the credibility of the AERB. The Court claims that the AERB “has, over the years, issued a large number of codes, standards and guides”, while the CAG pointed out that the AERB had failed to prepare “a radiation safety policy even after three decades of its existence”.
The court does not seem to have properly considered the prayers contained in the SLP. While the petitioner had asked for commissioning the plant after ensuring all safety & environmental requirements court has said that the petitioner wanted “total closure of the plant and we have not conceded to the said prayer”.
Not addressing corruption and sub-standard machinery issues
Another disturbing aspect of the judgment is the question as to why did SC ignore the IA filed on 23 April (two weeks before the judgment) clearly bringing to the notice of the Supreme Court the supply of sub-standard equipment and materials by ZiO Podolsk, a Russian public sector machine works company, to the Koodankulam plant, and how Unit 2 of the Leningrad nuclear power plant using similar materials supplied by the same company collapsed on 17 July 2011, leading to the arrest and prosecution of Sergei Shutov, procurement director of ZiO Podolsk, by a Federal court in Russia. All other scams/scandals like 2G Spectrum, Commonwealth Games, Coalgate etc came out and are under serious investigation because of exposures by CAG followed by activism and advocacy by civil society with legal luminaries in the forefront. Courts had not been forewarned in these scams, but when these came before the SC it took very serious notice and is pursuing these with vigour by upbraiding the government and constituting SIT etc. What happened in the Coalgate case is an apt example. But in the KKNPP case it is just the opposite. SC was forewarned about the scam, sub-standard material and corruption and criminal action in Russia against supplier company weeks before the judgment was issued and was ‘mentioned’ in open court. The least SC could have done was to ask for independent investigation in to these ‘life-threatening’ allegations and satisfied itself before issuing final orders.
On this aspect of SC judgment Dr. A. Gopalakrishnan, former Chairman, AERB has a slightly different take. This is what he has to say: “As per Directions No: 15 given in the SC Judgment, NPCIL, AERB, MoEF and TNPCB are to be jointly involved in all aspects of certifying this reactor as safe. Of these three organizations (AERB, TNPCB, MoEF) are Regulatory Agencies, and NPCIL is the promoter and it will have to serve as the main supplier of inspection data and other compliance information to the other three for review . Without solely resting their confidence & trust in the two DAE institutions (AERB & NPCIL) , the Supreme Court has intentionally broadened the jury to include two additional government regulators who are not connected with the DAE. This I see as the impact of our last affidavit (IA on 23 April) on Zio-Podolsk corruption and supply of substandard components & equipment from Russia. We have to make best use of this opportunity”.
This matter however has been taken care of in a complaint filed with the CBI and a writ filed in the Madras High Court for directing the CBI to conduct expeditious investigation into corruption and supply of sub-standard equipment.
Dr. EAS Sarma, former Secretary to Government of India, Ministry of Power has created a matrix for making the ‘best use’ of the 15 directions and other observations made in the SC judgment. It is presented below with some of my inputs:
||Direction & Action points
||Compliance imperative before commissioning
||The plant should not be made operational unless AERB, NPCIL, DAE accord final clearance for commissioning of the plant ensuring the quality of various components and systems because their reliability is of vital importance.
||Final clearance and the process adopted should be placed in the public domain as required under Section 4 of RTI Act, 2005.
||MoEF should oversee and monitor whether the NPCIL iscomplying with the conditions laid down, while granting
clearance vide its communication dated 23.9.2008 under the provisions of EIA Notification of 2006, so also the conditions laid down in the environmental clearance granted by the MoEF vide its communication dated 31.12.2009. AERB and MoEF will see that all the conditions stipulated by them are duly complied with before the plant is made operational.
|MOEF should place the monitoringreports in the public domain as required under Section 4 of RTI Act, 2005.
||Maintaining safety is an ongoing process not only at thedesign level, but also during the operation for the nuclear
plant. Safeguarding NPP, radioactive materials, ensuring
physical security of the NSF are of paramount importance.
NPCIL, AERB, the regulatory authority, should maintain
constant vigil and make periodical inspection of the plant
at least once in three months and if any defect is noticed,
the same has to be rectified forthwith.
|NPCIL, AERB should place the periodic reports in public domain as required under Section 4 of RTI Act, 2005.
||NPCIL shall send periodical reports to AERB and the AERB shall take prompt action on those reports, if any fallacy is noticed in the reports.
||The reports should be available for the public as required under Section 4 of RTI Act, 2005.
||SNF generated needs to be managed in a safe manner toensure protection of human health and environment from
the undue effect of ionizing radiation now and future, for
which sufficient surveillance and monitoring programme
have to be evolved and implemented.
|Copy of the surveillance and monitoringreports should be available in public domain as required under Section 4 of RTI Act, 2005.
||AERB should periodically review the design-safety aspectsof AFR feasibly at KKNPP so that there will be no adverse
impact on the environment due to such storage which
may also allay the fears and apprehensions expressed by
|The reports should be available in public domain as required under Section 4 of RTI Act, 2005.
||DGR has to be set up at the earliest so that SNF could betransported from the nuclear plant to DGR. NPCIL says
the same would be done within a period of five years.
Effective steps should be taken by the Union of India,
NPCIL, AERB, AEC, DAE etc. to have a permanent DGR at the earliest so that apprehension voiced by the people of
keeping the NSF at the site of Kudankulam NPP could be
|The periodic progress reports should be available in public domain as required under Section 4 of RTI Act, 2005.
||NPCIL should ensure that the radioactive discharges to theenvironmental aquatic atmosphere and terrestrial route
shall not cross the limits prescribed by the Regulatory
|The monitored data should be available in public domain as required under Section 4 of RTI Act, 2005.
||The Union of India, AERB and NPCIL should take steps atthe earliest to comply with rest of the seventeen
recommendations, within the time stipulated in the
affidavit filed by the NPCIL on 3.12.2012.
|The Apex Court, in para 189, has cautioned AERB, NPCIL as follows.“Adequate measures have, therefore, to be taken for storage of NSF at site, and also for the physical safety of stored NSF. Of the seventeen suggested safety measures, by AERB, LWR, twelve have already been implemented and the rest, in a phased manner have to be implemented which the experts say, are meant for extra security”
The apex court, in para 228, has also emphasised as follows
“Therefore, I am obliged to think that the delicate balance in other spheres may have some allowance but in the case of establishment of a
nuclear plant, the safety measures would not tolerate any lapse. The grammar has to be totally different. I may hasten to clarify that I have not discussed anything about the ecology and environment which has been propounded before us, but I may particularly put that the
proportionality of risk may not be “zero” regard being had to the nature’s unpredictability. All efforts are to be made to avoid any man-made disaster. Though the concept of delicate balance and the doctrine of proportionality of risk
factor gets attracted, yet the same commands the highest degree of constant alertness, for it is disaster affecting the living. The life of some cannot be sacrificed for the
purpose of the eventual larger good.”
Therefore, NPCIL is expected to lay down strict time schedules to ensure safety and the progress reports should be available in public domain as required under Section 4 of RTI Act, 2005.
||SNF is not being re-processed at the site, which hasto be transported to a Re-Processing facility. Therefore,
the management and transportation of SNF be carried out
strictly by the Code of Practices laid down by the AERB,
following the norms and regulations laid down by IAEA.
|The details should be placed in public domain as required under Section 4 of RTI Act, 2005.
||NPCIL, AERB and State of Tamil Nadu should takeadequate steps to implement the National Disaster
Management Guidelines, 2009 and also carry out the
periodical emergency exercises on and off site, with the
support of the concerned Ministries of the Government of
India, Officials of the State Government and local
|Hon’ble Madras High Court in W.P.No.24770 of 2011 August 2012 (Para 89) observed as follows“Even though it is stated that the said exercise was done in only one village, namely Nakkaneri village, which is stated to be nearer to the KKNPP, as we are informed that nearly 30 to 40 villages are within 30 Kms radius of KKNPP, such event must take place in all villages and more importantly, apart from the officials, as stated above, the people in the area must be made to participate and an awareness programme must be made to infuse confidence in the minds of the local people that the project is for the benefit of the country and there is no need to alarm”
Since this observation has not been modified by the apex court, it should be treated as a pre-condition to commissioning of the plant. In addition, implementation of NDMA’s guidelines should also precede commissioning.
The Apex Court’s observation in para 221 (extracted below) of the judgment has importance
“The concept of disaster management cannot be allowed to remain on paper. Its procrastination itself rings the bell of peril. The
administration has to be alive to the said situation and the awakening to manage the disaster in case of an
unfortunate incident has to be founded on scientific and
sophisticated methods. Taking care of the situation of the present alone is not the solution. All concerned with the same are required to look to the future because that elevates the real concern. The danger of the future should be seriously taken note of and should not be veiled in the guise of thought for the present”.
||NPCIL, in association with the District Collector,Tiruneveli should take steps to discharge NPCIL Corporate
Social Responsibilities in accordance with DPE Guidelines
and there must be effective and proper monitoring and
supervision of the various projects undertaken under CSR
to the fullest benefit of the people who are residing in and
|Progress reports with the names of beneficiaries should be placed in public domain as required under section 4 of RTI Act. A special audit should be ordered to ensure proper utilisation of the funds
||NPCIL and the State of Tamil Nadu, based on thecomprehensive emergency preparedness plan should
conduct training courses on site and off site administer
personnel, including the State Government officials and
other stake holders, including police, fire service, medicos,
emergency services etc.
|Progress reports with the names of trainees should be placed in public domain as required under section 4 of RTI Act. A special audit should be ordered to ensure proper utilisation of the funds
||Endeavour should be made to withdraw all thecriminal cases filed against the agitators so that peace
and normalcy be restored at Kudankulam and nearby
places and steps should be taken to educate the people of
the necessity of the plant which is in the largest interest of
the nation particularly the State of Tamil Nadu.
|This should precede commissioningction taken should be placed in public domain as required under Section 4 of RTI Act
||The AERB, NPCIL, MoEF and TNPCB would overseeeach and every aspect of the matter, including the safety
of the plant, impact on environment, quality of various
components and systems in the plant before
commissioning of the plant.A report to that effect be filed before this Court before commissioning of the plant.
|The Report thus filed should be notified to the Petitioner for filing counter and if found ‘fake’ SC should order investigation of quality of various components and systems in the plant by an Independent Expert Group before issuing final orders.
Compliance requirement suggested for Direction #15 assumes all the more importance due to post-judgment revelations through a research study that the reactor pressure vessel (RPV) supplied to KKNPP, considered to be the heart of the reactor, could be obsolete and different from the originally promised one. This has humongous repercussions and if unchecked, has all the potential for a catastrophe in peninsular India and the island of Sri Lanka. Serious charges of corruption and suspicion of substandard material and obsolete RPV have arisen, but not addressed even by the highest court of law. God forbid, if some incident/accident happens during commissioning or after, besides human catastrophe it would devastate SC as an institution and extinguish whatever little faith people have in this bulwark of justice. Supreme Court monitored pre-commissioning is therefore a must because the Court has placed public safety on the pedestal of “Constitutional Trust” and hopefully would never countenance its betrayal by the nuclear establishment.
But the ‘soldiers on the ground’ have a different perception altogether. They are of the view that in order to free up Russia from supplier liability, charges of theft and abject project failure, the Indian nuclear establishment has begun to claim that the KKNPP is not a Russian turnkey project.
Following the Supreme Court’s verdict, nuclear establishment is announcing various dates to fake-commission the project and trying to protect their own self interests and save the Russians from all the embarrassing and serious charges. Instead of answering the component-related concerns, financial improprieties and liability commitments in an earnest manner, they are spreading irresponsible rumors and conjectures as they have been doing since 2005 about commissioning the KKNPP.
In fact, the KKNPP authorities do not even allow journalists anywhere near the reactors for fear of their smelling any of the fishy things that have been happening there. In an interview RS Sundar, the site director has claimed that they are facing difficulties with the media.
This is what the struggle leaders have to say: “The Indian government, Department of Atomic Energy (DAE), and the AERB do not even want to walk the extra mile of assessing the quality and safety of the components with a team of independent scientists, engineers and journalists. No one in India knows anything about the omissions and the commissions of the KKNPP, NPCIL, AERB, DAE, AEC and their Russian counterparts and suppliers. Even the Indian courts seem to accept the establishmentarian views in spite of the fact that they have laid down fifteen directions in their recent judgment. All nuclear establishment want is commissioning of the plant even if it is a fake one! So all the thefts, untested technology, unsafe components and the overall failure could be buried in radioactive contamination and inter-governmental cover up.”
So the struggling community, all ordinary citizens of India, have decided to turn to their fellow citizens and Mother Nature to protect the interests of our country and people. They have decided to come out in the open, travel to neighboring villages and organize people all over again. They have decided to fight it out to the finish and are confident that they shall overcome.
To this determination Admiral L.Ramdas has responded to the struggle coordinator Udayakumar: “We are happy to see that the spirit of “Never say Die” prevails. I am sure our prayers and hard work and commitment will not go waste. Regards and Greater strength to your elbow”. So, it is from Supreme Court to the Court of the People.
We are a Democracy and VOX POPULI is VOX DEI–‘Voice of the People is Voice of God’. But is mere voice enough? To seek assurance, ground forces should draw on the famous clarion of Alexander Solzhenitsyn: “It is infinitely difficult to begin when mere words must remove a great block of matter. But there is no other way if none of the material strength is on your side. And a shout in the mountains has been known to cause an avalanche”
Just replace ‘mountain’ with ocean and ‘avalanche’ with tsunami. BRAVO.